Posted on: Saturday, October 26, 2002

Agencies can't use public resources to push positions on amendment

By Curtis Lum
Advertiser Staff Writer

State and city agencies including the city prosecutor's office cannot use public time or resources to advocate for or against a constitutional amendment question that will appear on the Nov. 5 ballot, according to the attorney general's office.

Deputy Attorney General Thomas Keller, who wrote the legal opinion, said that the ruling should also apply to county agencies such as the city prosecutor's office, which has been publicly supporting constitutional amendment Question No. 3.

The prosecutor's office has spent about $1,000 in city labor and materials to print brochures in support of the measure, which would provide an alternative method of sending felony cases to trial. City Prosecutor Peter Carlisle has said the expenditure was legitimate.

Carlisle could not be reached for comment yesterday.

The proposed constitutional amendment has pitted Carlisle and law enforcement officials who favor the proposal against criminal defense lawyers and the American Civil Liberties Union opposed to the measure.

Deputy Public Defender Susan Arnett said most attorneys in her office oppose the proposed amendment, but they have not used work time or money to push their positions.

She said her office sought the opinion because it received conflicting information from the state Ethics Commission.

Arnett said the commission confirmed that it was not appropriate for a state agency to use public money and time. But she said the same office sent a letter to Carlisle saying that what he was doing was not a violation of ethics laws, prompting her to seek a legal opinion from the attorney general's office.

Ethics Commission Executive Director Daniel Mollway yesterday said he did not give Carlisle the green light to proceed with his activity. Mollway said he advised Carlisle that the matter was a constitutional issue that should be dealt with by the attorney general's office.

In his opinion released Thursday, Keller wrote that the public defender's office may use its time and resources to inform voters about the proposed amendment. But he said that agency could not do the same to make a recommendation.

"Unlike the attorney general, the Public Defender does not have express statutory authority to make recommendations to the public about the criminal justice system," Keller wrote. "You or your staff may not use state time or resources to advocate for or against ballot question 3."

The ballot proposal deals with the way people are ordered to stand trial on felony charges in Hawai'i. At present, defendants can be brought to trial in one of only two ways: by a grand jury indictment or through a preliminary hearing.

The proposed amendment would authorize legislators to permit a third approach — called "information charging" — in which prosecutors would submit a statement, supported by affidavits of police officers or others, for a judge to consider solely in determining whether there is sufficient evidence to send a felony suspect to trial.

Many defense attorneys and civil rights groups oppose the proposed amendment and said it would erode due process rights.

"It's writing a blank check to law enforcement and government officials," Arnett said. "The protections were put into place so those in power did not abuse their powers and to do away with the protections and to have no idea what's going to take their place seems to us a bad idea."